# Petition — Lindsey v. Louisiana > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_1456%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1983 - **Citation:** 464 U.S. 908 ## Text ) ) RECEIVED [ NO. A-921 JUN 23.1983 NO. ¥2- L473 Orrin oe sac CLERK IN THE SUPREM" fonet ys SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1982 TYRONNE LINDSEY, Petitioner vs. STATE OF LOUISIANA Respondent PETITION FOR WRIT OF CERTIORARI TO SUPREME COURT OF THE STATE OF LOUISIANA PETITION FOR WRIT OF CERTIORARI WILLIAM NOLAND/LAWRENCE J. BOASSO ATTORNEYS FOR PETITIONER TYRONNE LINDSEY 2739 Tulane Ave. Mail To: Box 26183 New Orleans, La. 70186 504/ 822-3104 mr Ee me me ee ee eee I. to to if it II. to it by i. QUESTIONS PRESENTED FOR REVIEW Whether the Supreme Court of the State of Louisiana failed apply the correct federal constitutional standard in failing undertake a statewide proportionality review to determine the death penalty was proportionate to the crime for which was imposed. Whether the Supreme Court of the State of Louisiana failed apply the correct federal constitutional standard when chose not to consider whether the death sentence was imposed invalid statutory circumstances found by the jury. I11. Whether the Louisiana statutory provisions for the imposi- tion of the death penalty fails to meet federal constitutional standards. ES TABLE OF CONTENTS Questions Presented For Review. ......+.+4+-e6-e.tiHh | it. PC ee a en cae ee, ee Fe SEE ae TE ee f Opinions of the Courts Below ........ .. . »-Appendix a Jurisdiction of the Supreme Court ..........1 Constitutional Provisions Involved ........ .1,2 a a ee ae ee eee | | ee ea a ee ee ae ee er ee Gereificate of Service ..6 ss se te we ee oe ee j ! } Appendix A 2s“ Eee we S.C. .6 @¢.): 04) 2 ~0-'¢, & 00702 A-1 | i} ' ) iii a - TABLE OF AUTHORITIES _Federal Authorities Bachellar v. Maryland, 397 U.S. 564 (1970), ........ 23 Connally v. General Construction Co., 269 U.S. 385 (1926), . 16 | Furman v. Georgia, 408 U.S. 238 Ly pate RS RNS SEO 13,14,20 Giacco v. Pennsylvania, 382 U.S. 299 (1966). ......, 14 Godfrey v. Georgia, 446 U.S. 420 (1980)......... 11,23 Grayned v. City of Rockford, 408 U.S. 104 (1971) .... 15 | Gregg v. Georgia, Se iv ee GROTee c's es «th 5,6,7,8,11,21,24 Herndon v. Lowry, 301 U.S. 242 (1937)... ......... 4 | Jurek v. Texas, 428 U.S. 262 (1976) ...........:. 6,8 | Seskheth: =. Gite.: 438 U.S. SOR C976) is. CG Se ew 6 Oe ee S.A.A.C.P. ¥.\meteen, 371 0.8. 435, (3963).°. . 5 ee oe ee ee | ow eR OR OR es, ) ees Stromberg v. California, 283 U.S. 359 (1931),......, 23 Thornhill v. Alabama, 310 U.S. 88 (1970). ,..,..,...,.,. 14 Woodson v. North Carolina, 428 U.S. 180 (1976), .,...., 21 Zant v. Stephens, _U.S.___,_ 102 S.Ct. 1855 (1982), . . , 23 Deiies a. sete. 309:3.4;.2 Be) . 5. ARGUMENT The Supreme Court Of The State Of Louisiana Failed To Apply The Correct Federal Constitutional Standard Of Review By Not Undertaking A Statewide Proportionality Review Of Cases To Determine The Validity Of The Imposition Of The Death Penalty. The Louisiana first degree murder statute was formulated and adopted by the Louisiana legislature following several United States Supreme Court decisions which appoved of proportionality review of death sentences. Gregg v. Georgia, 428 U.S. at 198, 203, 965 S.Ct. at 1936, 2929 (plurality opinion); Proffit v. Florida, 428 U.S. at 259, 96 S.Ct. at 2969. Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950. The proportionality review is intended to prevent the arbitrary and capricious application of the death penalty. Greg v. Georgia, supra at 203, 96 S.Ct. at 2939. see Harris v. Pulley, 692 F.2d 1189 (9th Cir., 1983) Certiorari Granted, 203 S.Ct. 1425. The Louisiana State Constitution of 1974 provided for a judicial review of excessive sentences. Apparently in- fluenced by United States Supreme Court decisions relating to proportionality review of death sentence, Louisiana has adopted both by statute and rule a framework for such review, The Louisiana Code of Criminal Procedure Article 905.9 enjoins the Supreme Court of Louisiana to “review every sentence of death to determine if it is excessive” and directs the Court to “establish such procedures as are necessary to satisfy constitutional criteria for review." ee a 28, ) The Supreme Court of the State of Louisiana has responded to the necessity of a proportionality review in their Court Rule 28, 1(c) which provides: Review Guidelines. Every sentence of death shall be reviewed by this court to determine if it is excessive. In determining whether the sentence is excessive the court shall determine: (c) Whether the sentence is disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant. The Louisiana frame-work for review of death sentences is very similar to the statute reviewed by this Court in Gregg v. Georgia, supra , Im State v. Sonnier, 379 So.2d 1336 (La.1979) The Supreme Court of Louisiana recognized that, "This is the same procedure for review authorized by Georgia scatute approved by the United States Supreme Court in Gregg v. Georgia ." However, the Louisiana review process has deviated in a significant way from the forms of propor- tionality review approved by the United States Supreme Court. In Jurek v. Texas , 428 U.S. at 276, 96S.Ct. at 2958 (emphasis supplied) this Court recognized the validity of the Texas scheme by noting: "By providing prompt judicial review of the jury's decision in a court with state-wide jurisdiction, Texas has provided a means to promote the evenhanded, rational, and consistent imposition of death sentences under law." In Gregg v. Georgia this Court described how a valid system operated: "In performing its sentence-review func- tion, the Georgia court has held that ‘if the death penalty is only rarely imposed for an act or its is substantially out of line with sentences imposed for other acts it will be set aside as excessive.' Coley v. State, 231 Ga. (829), at 834, 204 Seva (612), at 616. The court on another occasion stated that ‘we view it to be our duty under the similarity standard to assure that no death sentence is affirmed unless in similar cases throughout the state the death lty has been ed 11 . _ . . Pee oof * 23 Ga * fei. 8 f 213 $s . . . 975) “ee ee ae ¢ ee eee ———=--—— kt Jarrell v. State, supra, 234 Ga. (410) at 475, 216 So.E.2d 73h) at 270 (standard is whether ‘juries generally throughout the state have osed the death penalty'); Smith v. State 36 Ga. 12, 24, 222 S.E.2d ; (found a ‘clear pattern’ of jury behavior). “It is apparent that the Supreme Court of Georgia has taken its review responsibil- ities seriously. In Coley, it held that * t he prior cases indicate that the past practice among juries faced with similar factual situations and like aggravating circumstances has been to impose only the sentence of life imprisonment for the offense of rape, rather than death.'231 Ga., at 835, 204 S.E.2d, at 617. It there- reduced Coley’s sentence from death to life imprisonment. Similarly, although armed robbery is a capital offense under Georgia law, 26-1902 (1972), the Georgia court con- cluded that the death sentences imposed in this case for that crime were ‘unusual in that they are rarely imposed for (armed . robbery). Thus, under the test provided by statute, .. . they must be considered to be excessive or disproportionate to the penalties imposed in similar cases.‘ 233Ga., at 127, 210 S.E.2d, at 667. The court therefore vacated Gregg's death sentences for armed robbery ant tee followed a similar course in every other armed robbery death penalty case to come before it. . The provision for appellate review in the Georgia capital-sentencing system serves as a check against the random or arbitrary imposition of the death penalty. In particular, the proportionality review substantially eliminates the LS grea pag that a person will be sentenced to die by the action of an aberrant jury. If a time comes when juries generally do not impose the death sentence in a certain kind of murder case, the appellate review procedures assure that no defendant convicted under such circumstances will suffer a sentence of death." Grege v. Georgia, 428 U.S. at 204-206, 96 S.Ct. at 0 | The Supreme Court of the State of Louisiana has not adopted a consistent method of proportionality review for capital cases. The proportionality review in appellant > TYRONNE LINDSEY'S case was conducted by comparing this case with cases within the 24th Judicial District rather than on a state-wide basis, It has apparently been the policy of the Supreme Court of the State of Louisiana to conduct proportionality review only on the basis of comparison to similar cases within a particular judicial district. However, that court has deviated from the limited district-wide proportionality review to occasionally conduct state-wide review in capital cases, see State v. Narcisse,-So,.2d-1983 (No.81-KA-2285); State v. Moore,-So.2d-1983 (No.82-KA-1709). It is submitted that the State of Louisiana has failed to follow the due process requirements in death sentences | as set out by this Court in Gregg v. Georgia and Jurek v. Texas. | The failure of the Supreme Court of Louisiana to adopt a consistent state-wide method of proportionality review has created an arbitrary death penalty appeal process, in violation of the Fifth and Fourteenth Amendments to the United States Constitution. This Court has recently granted certiorari to review the validity of the California death sentence review process. Harris v. Pulley, 692F.2d 1189 ( 9th Cir., 1983) Certiorari Granted, 103 S.Ct.1425. The Louisiana death sentence review process has failed to comply with the constitutional requirements of due process necessary to prevent the arbitrary and capricious application of the penalty. II. The Louisiana Statutory Provisions For The Imposition Of The Death Penalty Fails To Meet Federal Constitutional Standards. At the conclusion of the second sentencing hearing, the jury recommended a death sentence and found 1, deputy marshal, sheriff, deputy sheriff, local or state pelicensn, game warden, federal law enforcement officer, jail or prison guard, parole officer, probation officer, judge, jst gy A general, assistant attorney general, at s vestigator, district attorney, assistant t attorney, or district attorney's investigator. Whoever commits the crime cf Sivet dugese auvdee onett De wees ra rf pase * sehatian pa As f pe the in of parole or s ° accordance eith the recoumendation the jury. —— A —_ —— ae 11. This situation is not per se 4 violation of the double jeopardy clause. However, it is counsel's contention that the use of a felony to support @ first degree murder conviction and_ to justify an aggravating circumstance presents an analogous problem in a death case. Essentially, once the underlying felony has been used to obtain 4 conviction of first degree murder, it has become an element of that crime; therefore, it should not be used thereafter as the basis for an additional prosecution or sentence. CF.State ex rel Wikberg | v. Henderson, 292 So.2d 505 (La.1974). See also, State ex rel Smith v. Phelps, 345 So.2d 446, 449 (La.1977). This conclusion is especially compelling in the context of a death case. In order to meet contemporary constitutional standards, “(a) capital sentencing scheme must... - provide a ‘meaningful basis for distinguishing the few cases in which (the death penalty) is imposed from the many cases in which it is not.'" Godfrey v. Georgia, supra, 100 So.Ct.1759, 1964 (1980) (plurality opinion). To achieve this goal, the jury's “discretion (to impose the death penalty) must be suitably directed and limited so as to minimize the risk of wholly arbitrary and capricious action,." Gregg v-. Georgia, 428 U.S. 153, 189 (1976) (plurality opinion). However, where the felony-murder serves to make the defendant death-eligible by virtue of a conviction of first degree murder and to authorize the jury to return the death penalty, without any additional findings (La.C.Cr.P. art. 905.3), the jury is licensed in its unbridled discretion to single- weight or double-weight an identical aspect of the defendant's conduct. Defendants convicted of first degree murder under La.R.S. 14:30(1) would thus start out with one aggravating circumstance against them based upon a single and inseparable | } | | | | | — feature of their crimes. Such a mechanistic application of an aggravating circumstance would deflect the jury from its relevant inquiry: what distinguishes this particular defendant convicted of robbery murder from other defendants guilty of capital crimes. In order to comply with pertinent federal constitutional dictates, the felony-murder aggravating circumstances must characterize a different and important element to a first degree murder conviction. That aggravating circumstance should not merely allow a jury to convert that guilt verdict into an automatic license to impose a death sentence. CF, State v. Cherry, 257 S.E.2d 551, 557, (N.C.1979), cert. den. 100 §.Ct.2165 (1980). Viewed in this perspective, it is clear that the first aggravating circumstance was improperly found by the jury in the case at bar. When appellant entered the sentencing phase, he already had one strike against him, since the jury had found a statutory aggravating circumstance by virtue of the first degree murder conviction. This serves to eliminate in the minds of the jury, a major function during sentencing -- the independent finding of aggravating factors to authorize a death sentence. As a result, the jury's critical res- ponsibilities at sentencing were diminished by its unlimited discretion to find an “automatic” aggravating circumstance. The jury's rcle at sentencing is not merely to repeat the guilty verdict in the form of an aggravating circumstance. In sum, at the sentencing phase, it is essential that the jury focus on whether there are particular circumstances of the offense, in addition to the first degree murder con- viction, that support a death sentence. Godfrey v. Georgia, supra, 100 $.Ct. at 1764. Instead, in the present case, the jury was allowed to return an aggravating circumstance already found as an essential aspect of the first degree —_——— A TT | | | | murder conviction, Thus, the jury was allowed to determine the defendant's guilt based on an identical factor that it subsequently employed to justify a death sentence. The discretion granted the jury does not comport with the requirements of Furman v. Georgia, 408 U.S. 238 (1972). Therefore, this Court should bar instructions on the underlying felony aggravating circumstance at the sentencing phase once the jury has returned a guilt verdict based on that felony. Such a rule would ensure that the jury's dis- cretion has been properly exercised and that the death sentence was not imposed under the arbitrary influence of an "automatic" aggravating circumstance. AGGRAVATING CIRCUMSTANCE NO. 2. The Offender Has A Significant Prior History of Criminal Activity. La.C.Cr.P. Art.905.4(c), provides that the jury may find as an aggravating circumstance that: "The offender was previously convicted of an unrelated murder, aggravated rape or aggravated kidnapping or has a significant prior history of criminal activity." In accordance with this provision the jury found as one of the aggravating circumstances that Tyronne Lindsey had a "significant prior history of criminal activity."(R.676). Appellant acknowledges that the specifically listed violent crimes in La.C.Cr.P.Art. 905.4(c) have a rational relationship in determing the propriety of imposing the death sentence. However, the provision that allows a finding that a defendant has "...a significant prior history of criminal activity..." is unconstitutional because the provision is unconstitutionally vague on its face; and consequently, fails to adequately channel and focus capital sentencing discretion, In short, the provision violates the Eighth and Fourteenth Amendments as construed in Furman v. Georgia, 408 U.S.238(1972), dp ijn ———— phe oe os + ee 79ST Ee | ae i - n 36 A. The StatutoryLanguage "Significant Prior History of Criminal Activity” is Unconstitutionally Vague. Due process forbids the imposition of sanctions under any procedure that "licenses the jury to create its own standard in each case," Herndon v. Lowry, 301 U.s. 242, 2631(1937) “and is susceptible of sweeping and improper application." N.A.A.C.P. v. Batton, 371 U.S.415,433(1963). See also Giacco v. Pennsylvania, 382 U.S. 299(1966); Thornhill v. Alabama, 310 U.S. 88, 97(1970). The due process doctrine of vagueness is firmly established and encompasses principles of fair notice, or warning, and _ definitive guidelines for law enforcement officials, judges and juries to follow in the application of their respective duties. This Honorable Court has stated: "Vague laws offend several important values, First...we insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that May act accordingly."...Second, if arbitrary and dis- criminating enforcement is to be prevented, laws must provide explicit standards for those © apply them. vague law ermissibly delegates basic policy matters to policemen judges, and juries for resolution on an ad hoc ; and subjective basis, with the attendant dangers or arbitrary and pee ee ge! application. Grayned v. City of Rockford, 92 S.Ct.2294(1972). The possibility of an arbitrary application of a statute is of paramount concern in capital cases. The law "calls for a greater degree of reliability when the sentence of death is imposed." Lockett v. Ohio, 438 U.S.586(1978); also see Furman v. Georgia , supra. Louisiana's death penalty statute is modeled after that of Georgia's. State v. Sonnier , 379 So.2d 1336, (La.1980). (on rehearing). Therefore, the interpretation of analogous provisions in the Georgia statute should be accorded con- siderable weight in assessing the Louisiana death sentencing scheme. | 7 eee eee eee — 19. In State v, Culberth , 390 So.2d 847 (La.1980), the Louisiana Supreme Court considered the application of this aggravating circumstance where the defendant did not injure or kill anyone other than the victim. He did, however, threaten another person with a weapon in hand, and tell the person that he would be "next." Id at 850. This threat was not pursued when the defendant had the opportunity to do so. The Court held that, in the circumstances of that case, there was insufficient evidence of a "single and consecutive course of conduct (that) contemplates and causes a great risk to more than one person," Culberth, id at 850. See also, State v. English, 367 So.2d 815 (La.1979). The present case presents a comparable situation. The appellant did not injure or kill anyone wother than Ms. Kidner. While Tyronne Lindsey may have pointed a weapon at others, but Tyronne did not take any further steps to injure anyone. (R. 414,429). Unlike the defendant in Culberth , Tyronne made no verbal threats. Furthermore, as in Culberth, Tyronne did not attack anyone after the incident. The evidence, even when viewed in a light most favorable to the prosecution does not suggest that he intended to kill anyone other than Ms. Kidner. The present case is therefore, similar to the Louisiana Supreme Court decision in Culberth, for both cases involved little more than the brandishing of weapons. It follows that the third aggravating circumstance found by the jury is not supported by the record. The failure of the Supreme Court of Louisiana to follow a consistent jurisprudential pattern is review of this aggravating circumstance serves to deny appellant his due process rights. In the present case the Supreme Court of Louisiana did not review this aggravating circumstance to determine if it was invalid or if the jury's consideration ff aft. nassaawneseGedane, of weseeee Games e628 Beeman eaaeem eee ee ee + + 20. IIl. The Supreme Court Of The State Of Louisiana Failed To Apply The Correct Federal Constitutional Standard When It Chose Not To Consider Whether The Death Sentence Was Imposed By Invalid Statutory Circumstances Found By The Jury. The Supreme Court of Louisiana has consistently refused to vacate a death sentence where the sentencing jury relied on an invalid aggravating circumstance, as long as the jury also relied upon another valid aggravating circumstance in imposing the death penalty. State v. Narcisse, No. 81-KA-2285 (La.Jan. 10, 1983); State v. Moore, 414 So.2d 340 (La. 1982); State v. Williams , 383 So.2d 369 (La. 1980), cert. den., 449 U.S. 1103; State v. Martin, 376 So.2d 300 *La. 1979), cert. den., 449 U.S.998. Accordingly, the Supreme Court of Louisiana ruled, in the instant case, that, "Since the jury found one statutory aggravating circumstance (La.CodeCrim.P.Art.905.5(a)) and that circumstance is clearly supported by the record, we find it unnecessary to decide whether the jury erred in finding two additional aggravating circumstances." State v. Lindsey, No. 82-KA-1323 at 7-8(La.Feb.23,1983). Counsel contends that this practice of the Supreme Court of Louisiana ravages the very basis upon which the constitutional imposition of the death penalty rests. In 1972 this Court held that the death penalty laws in Georgia constituted cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments. Furman v, Georgia, 408 U.S. 238(1972). In arriving at this conclusion this Court recognized that, "The high service rendered by the cruel and unusual punishment clause" of the Eighth Amendment is to require legislatures to write penal laws that are everhanded, nonselective, and nonarbitrary, and to require judges to see to it that general laws are not applied sparsely, relatively, ——— and spottily to unpopular groups.” Furman; supra at 256. As the death penalty laws, at the time of Furman, could not assure non arbitrary evenhended application, the death penalty statutes were unconstitutional under the Eighth and Fourteenth Amendments. Several years after Furman this Court considered the constitutionality of another Georgia death penalty statute which was enacted shortly after Furman. Gregg v. Georgia, 428 U.S. 153(1976). This Court ruled that a carefully drafted statute which properly guided jury's deliberation, could ensure that the death penalty was not imposed in an arbitrary or capricious manner. Gregg, id. at 195. In deciding that Georgia's statute satisfied this criteria : this Court expressed the importance of aggravating and en circumstances in properly guiding the jury's deliberations. : ) "While such standards are by necessity i somewhat general, (aggravating & mitigating circumstances) od provide guidance to the sentencing authority and thereby reduce the liklihood that it will impose a sentence that fairly can be called capricious or arbitrary. Where the sentencing authority is required to specify the factors it relied upon in reaching its decision, the further safeguard of meaningful appellate review is available to ensure that death sentences are not imposed capriciously or in a freakish manner." Gregg v. Georgia 408 U.S. at 194,195. Later this Court again emphasized that the consideration of the mitigating and aggravating circumstances is a "constitutionally indispensable part of the process of inflicting the penalty of death." Woodson v. North Carolina, 428 U.S. 180,304. (1976) This conclusion was based on the qualitative difference between the penalty of death and the penalty of imprisonment and that “there is a corresponding differance in the need for reliability. in the determination that death is the appropriate punishment in a specific case." Woodson, supra at 305. The Louisiana sentencing scheme focuses on the circun- stances of the offense and the character and propensities of the defendant. La.C.Cr.P.Art. 905.2. In order to impose However, the jury must also consider the pertinent mitigating circumstances before imposing the death penalty. State v. Clark , 387 So.2d 1124(La.1980). In short, this scheme is essentially molded after the Georgia provisions in Gregg v. Georgia . See State v. Clark, supra , at 1133. Like the Georgia statute, the Louisiana capital sentencing provisions substantially rely on the codified aggravating circumstances to support its constitutionality. State v. Clark, supra, at 1133. Also see Gregg v. Georgia, supra, at 206. | ee ee ee ae ee To hold, as does the Supreme Court of Louisiana that the death penalty is constitutional as long as the jury relied, in part, on valid aggravating circumstances, is enachone | to this Court's decision in Goodfrey v. Georgia , 446U.S.420 (1980). In Godfrey this Court ruled that the discretion of a capital sentencing jury must be guided by "'clear and objective standards’ that provide specific detailed guidance and that make rationally reviewable the process for imposing a sentence of death." Godfrey v. Georgia, supra at 423 (Footnote omitted). This constitutional requirement has not been met when a jury receives instructions upon an impermissible statutory aggravating circumstance and proceeds to return a sentencing v erdict based in part upon such an impermissible factor. In the instant case the jury found and returned at least one invalid aggravating circumstance in imposing the death penalty on Tyronne Lindsey.” As the record does not reflect the circumstance or circumstances which influenced | the jury, one can only speculate whether "the (sentence) in this case was not decisively affected by an unconstitutional statutory circumstance." Stephens v. Zant, 631 F.2d 397,406 = (Sth Circ.1980), modified, 648 F.2d 446 (Sth Circ.1981), cert. grtd. _iU.S.__—s—scertified to Supreme Court of Georgia, __U.S.___, 102 S.Ct. 1856(1982). To engage insuch speculation portends that the jury's sentencing process is not rationally reviewable. See Godfrey v. Georgia, 446 U.S. 420 (1980). Furthermore, this Court has consistently refused to in- dulge in speculating whether a jury "would have reached the same conclusion in the absence of an unconstitutional in- struction.” Zant v. Stephens, U.S. ,102 §.Ct.1855, 1862 (1982) (Marshall, J. Dissenting); Bachellar v. Maryland , 397 U.S. 564, 570-571 (1970); Stromberg v. California, 283 U.S. 359 (1931); Bufford v. State, 382 So.2d 1162 (Ala.Cr.App.1980). Thus as the sentencing jury was instructed to consider several aggravating circumstances, where at least one of which proved to be unconstitutional, and the reviewing court is unable to determine from the record whether the jury relied on the unconstitutional circumstance, the sentence must be set aside. See Stephens v. Zant, supra at 406; Bufford v. State, 382So0.2d 1162 (Ala.Cr.App.1980). In sum, the record is not rationally reviewable, to ensure that the sentencing jury's discretion was properly guided by valid, constitutionally-indispensable aggravating circumstances. | The policy of the Supreme Court of Louisiana in failing to review all aggravating circumstances serves to deny a capital defendant his right to proper judicial review. The Supreme Court of Louisiana has failed to provide a rationale for refusing to consider the effect of the jury's finding of in- valid aggravating circumstances. Thus, the capital sentence review process in Louisiana fails to comply with proper constitutional requirements of review. CONCLUSION The State of Louisiana has failed to devélope a con- stitutionally acceptable method of appellate review of capital cases. The Supreme Court of Louisiana does not conduct a consistent statewide proportionality review of cases where the death penalty has been imposed. Additionally, the Supreme Court of the State of Louisiana has decided not to review all of the aggravating circumstances returned by jury verdict in death cases. This inconsistent and arbitrary appellate review process denies due process of law to appellants in death cases in Louisiana. This Honorable Court should require the State of Louisiana to formulate and adopt a consistent and uniform method of proportionality review in capital cases. The Court should require a clarifica- tion of the policy of the Supreme Court of the State of Louisiana in failing to review all of the aggravating cir- cumstances found by the jury. Moreover, the statutory scheme which allows an overlapping of the elements of capital murder in the elements of the aggravating circumstances must be corrected to require a constitutionally acceptable death sentence procedure. WILLIAM NOLAND ATTORNEY FOR PETITIONER, TYRONNE LINDSEY 2739 Tulane Ave. Mail To: Box 26183 New Orleans, La. 70186 504/ 822-3104 ( | FECEIVED | ». $2-L913 JUN 2 3 1983 NO, A-921 4 | | trict OF THE CLERK i aaa SUPREME COURT, US, | | | SUPREME COURT OF THE UNITED STATES ! OCTOBER TERM, 1982 — ee Oe ee TYRONNE LINDSEY, Petitioner VS. STATE OF LOUISIANA, Respondent MOTION FOR LEAVE TO FILE WRIT OF CERTIORARI IN FORMA PAUPERIS Petitioner, TYRONNE LINDSEY, moves this Court for an order | permitting him to file this Writ Of Certiorari for review of | the judgment of the Supreme Court of Louisiana of February 23, | 1983, Rehearing Denied March 25, 1983 in forma pauperis, } pursuant to the provisions of Tile 28 of the United States Code, Section 1915, and in support therefore attached the . affidavit of petitioner. \ WILLIAM NOLAND/LAWRENCE J. BOASSO ATTORNEYS FOR PETITIONER | TYRONNE LINDSEY 2739 Tulane Avenue \ Mail To: Box 26183 New Orleans, Louisiana 70186 | (504) 822-3104 ee eee eee a IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM 1982 TYRONNE LINDSEY, Petitioner VERSUS STATE OF LOUISIANA, Respondents AFFIDAVIT OF TYRONNE LINDSEY IN SUPPORT OF MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS I, TYRONNE LINDSEY, being first duly sworn, depose and state that I am the petitioner in the above entitled case; that in support of my motion for leave to proceed without being required to prepay fees, costs or give security therefor, I state that because of my poverty I am unable to pay the fees and costs of this proceeding or to give security therefor; and, that I believe I am entitled to the redress sought in the petition for writ of certiorari. I am presently incarcerated i under sentence of death in the custody of the Louisiana Depart- ment of Corrections. I further swear that the responses which I have made to the questions and instructions below relating to my ability to pay the cost of prosecuting this petition are true. 1. Are you presently employed? No a. If the answer is yes, state the amount of your salary or wages per month and give the name and address of your employer. None b. If the answer is no, state the date of your last employment and the amount of the salary and wages per month which you received. Not applicable - Never Employed 2. Have you received within the past twelve months any income from a business, profession or other form of self- employment, or in the form of rent payments, interest, dividends, or other source? No a. If the answer is yes, describe each source of income, and state the amount received from each during the past twelve months. Not applicable 3. Do you own any cash or checking or savings account? No a. If the answer is yes, state the total value of the items owned. Not Applicable 4. Do you own any real estate, stocks, bonds, notes, automobiles, or other valuable property (excluding ordinary household furnishings and clothing)? Not Applicable a. If the answer is yes, describe the property and state its approximate value. Not Applicable e 5. List the persons who are dependent upon you for support and state your relationship to those persons. Not Applicable ee eee a eee - | | I understand that a false statement or answer to any questions in this affidavit will subject me to penalties for perjury. Timehe “Lraeiiey / SWORN TO AND SUBSCRIBED BEFORE ME, mars Ag* bay OF - , 1983. / NOTARYNPUBLIC SUPREME COURT OF LOUISIANA NO. 82-KA-1323 f STATE OF LOUISIANA V. TYRONNE LINDSEY ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT, PARISH OF JEFFERSON, STATE OF LOUISIANA HONORABLE WALLACE C. LeBRUN, JUDGE MARCUS, Justice Tyronne Lindsey was indicted by the grand jury for the first uwegree murder of Earline B. Kidner in violation of La. R.S. 14:30. After trial by jury, defen- dant was found guilty as charged. A sentencing hearing was conducted before the same jury that determined the issue of guilt. The jury unanimously recommended that a sentence of death be imposed on defendant. The trial judge sentenced defendant to death in accordance with the recommendation of the jury. Defendant appealed his conviction and sentence to this court. We affirmed defendant's conviction but vacated his sentence because of inappropriate comments by the state and the trial judge on the possibility of pardon and commutation. Defendant's case was remanded to the district court for the empanelling of a new jury for deter- mining anew only the issue of penalty in accordance with the procedure set out in La. Code Crim. P. art. 905.1(B). On remand, a new jury was selected, The evidence presented was practically the same as that adduced D4 fee’ OW, disses a Hm “eqns a cr. tana Se Colette lO td #82-KA~-1323 at the original trial of the case. Additionally, defendant offered extensive evidence in mitigation. At the conclu- Sion of the sentencing hearing, the jury unanimously recom- mended that a sentence of death be imposed on defendant. The trial judge sentenced defendant to death in accordance with that recommendation. In an assignment of errors filed in the district court, defendant designated seventeen errors to be urged on appeal. In brief to this court, defendant asserts eleven separate arguments covering many but not all of the assigned errors. Those errors not briefed were likewise not argued. In disposing of the matter, we followed the numerical order of the assignments of error designating opposite each the numbered argument (s) covering those assigned errors. Sixteen of the assignments of error including eight of the arguments do not present reversible error, nor do any involve legal issues not governed by clearly established principles of law. They will be treated in an appendix which will not be published but which will comprise part of the record in this case. We have treated those assignments which were neither briefed nor argued at the end of the appendix. The remaining assignment of error (No. 17) covered by arguments (Nos. V, VII and IX) deals with the sentence review by this court. FACTS On the evening of December 19, 1979, at about 7:30, John Knopf and Steven Birks were returning to their car in the parking lot of the Oakwood Shopping Center in Jefferson Parish. They heard someone scream behind them and began walking toward the direction from which the State v. Lindsey scream had come. Knopf hollered “Hey,* and Birks, turning and looking toward his left, saw *a black man who had a white lady crouched down by the side of her car, passenger side.* No other black men were in the vicinity. The man started running. Birks and Knopf, running down separate aisles of cars, pursued him, After about fifty yards, the man stopped in the well-lit area, turned, and aimed a .22 revolver at Knopf. Surprised to discover the man was armed, Knopf hesitated and then ducked behind a car. The man took off again and Birks continued the chase but never had an opportunity to observe his face and ultimately lost him. Richard Alexander, a bystander in the vici- nity, was about to get into his car when he heard screams and, looking in the direction from which they came, ob- served a struggle and then somebody running and pointing a gun at two people chasing him. When the man came within two car lengths (fifty feet), Alexander saw the man turn and point the gun at him. He noted both the man's face and that the gun was a .22 revolver. Birks and Knopf returned to the area where they first observed the man only to find that his victim, Farline B. Kidner, age fifty-five, had been shot point blank. Mrs. Kidner was in town temporarily, visiting her son for three months around the Christmas holidays. She died in the hospital the day after the shooting. Both Alexander and Knopf later identified defendant, from photographic lineups, as the man they had seen that night. Upon his arrest, defendant gave a taped statement to the police, admitting both his complicity in a scheme to rob Mrs. Kidner of her purse and his flight from the area. But, defendant claimed that one of three friends with him, someone named *sidney,* shot Earline Kidner. Officer Beckendort, who took the statement from defendant, testified that Joseph Smith, another of the friends defen- dant claimed was with him the night of the shooting, had accused defendant of the killing. SENTENCE REVIEW ASSIGNMENT OF ERROR NO. 17 (ARGUMENTS V, VII AND IX) Defendant contends the trial judge erred in imposing an excessive sentence. Article 1, section 20 of the Louisiana Con- stitution prohibits cruel, excessive, or unusual punish- ment. La. Code Crim. P. art. 905.9 provides that this court shall review every sentence of death to determine if it is excessive. The criteria for review are established in La. Sup. Ct. R. 28, $l, which provides: Review Guidelines. Every sentence of death shall be reviewed by this court to determine if it is exces~- sive. In determining whether the sentence is excessive the court shall determine: (a) whether the sentence was imposed under the influence of passion, prejudice or any other arbitrary factors, and (b) whether the evidence supports the jury's finding of a statutory aggravating circum- stance, and (c) whether the sentence is disproportionate to the penalty imposed in similar cases, consi- dering both the crime and the defendant. (a) Passion, prejudice or any other arbitrary factors The defendant contends the death sentence was imposed under the influence of passion, prejudice or other arbitrary factors attributable to improper and inflammatory remarks made during the prosecutor's closing argument at the sentencing hearing. Defendant argues that the prose- cutor's remarks greatly exceeded the evidence and “created a substantial risk that the jury's attention would be im- properly shifted from its proper focus - the appropriate sentence to impose after an evaluation of the aggravating and mitigating factors - to the subject of the crime in general.* During closing argument, the prosecutor stated: If a man in this society can go to a shopping center during any point of time, Christmas or whatever, and because he needs narcotics or because he doesn't care about the huinan effect, he doesn't care about people, can take a gun and stick it into a woman's back and shoot her and murder her, simply because of his own gratification, if a man can do this and not re- ceive the ultimate penalty in law, well... that decision is in your hands. The prosecutor had made almost identical comments during closing argument at defendant's original sentencing hear- ing. State v. Lindsey, 404 So. 2d 466, 482 (La. 1981). And, like the original hearing, defendant made no objection at the time but rather waited and raised it as an assign- ment of error on appeai.? 1. Ordinarily, this court would find that the issue had not been preserved for review. La. Code Crim. P. art. 841. However, because this is a capital case and because this [footnote 1 continued on next page] Again, as on original hearing, we find defen- a@ant's contention to be without merit. The prosecutor's closing argument consisted of ten pages and four pages in rebuttal. He reminded the jury that defendant had already been found guilty of first degree murder. However, he emphasized that the state was nonetheless required to *prove beyond a reasonable doubt that at least one aggra- vating circumstance exists.° He informed the jury that his "closing remarks are not evidence. It's merely what the attorneys appreciate the evidence to be in the matter." He then proceeded to review the evidence to show that defen- dant had committed a murder while engaged in the perpetra- tion of an armed robbery, had knowingly created a risk of great bodily harm to more than one person and had a signi- ficant prior history of criminal activity. In rebuttal, the prosecutor responded to the arguments advanced by de- fense counsel in his closing argument. Again, he reminded the jury that its decision should not be “predicated on the argument of counsel" but rather “based on nothing more than the facts, the evidence, the circumstances that you heard during the course of this trial.*® It was in this context that the prosecutor made the above remarks. Considering the prosecutor's closing argument as a whole, we are unable to say that the remarks in question influenced, prejudiced or diverted the jurors from their sentencing obligations as mee eee ee OO OO OO OOS © OO 6S O82 2228 222 2222222222222 2222e— Se eietestietentnetinend [continuation of footnote 1) court has an obligation to examine the record for passion, prejudice or arbitrary factors which may have contributed to the death penalty recommendation, we will review the prosecutor's argument for possible reversible error. See La. Sup. Ct. R. 28, $1; State v. Berry, 391 So. 2a 406 (La. 1980) (on original hearing); State v. Sonnier, 379 So. 24 1336 (La. 1980) (on rehearing). correctly set forth in the trial judge's charge to them after completion of closing argument. Clearly, the remarks did not contribute to the jury's recommendation that defen- dant be sentenced to death. Our review of the record reveals no evidence that passion, prejudice or any other arbitrary factors influenced the jury in its recommendation of the death sentence. Nor has any argument to that effect been raised by defendant other than the above which we have found to be without merit. (b) Statutory aggravating circumstances The jury in its verdict found the following statutory aggravating circumstances: (a) the offender was engaged in the perpetration of armed robbery or simple robbery. (b) the offender has a significant prior history of criminal activity. (c) the offender knowingly created a risk of death or great bodily harm to more than one person. Armed robbery is the theft of anything of value from the person of another or which is in the imme- diate control of another by use of force or intimidation, while armed with a dangerous weapon. La. R.S. 14:64. In our view, the evidence amply supports the jury's finding that defendant was engaged in the perpetration of an armed robbery. Since the jury found one statutory aggravat- ing circumstance (La. Code Crim. P. art. 905.4(a)) and that 2. Although the defendant is black and the victim white, defendant does not contend nor does the record indicate that the prosecutor made any appeal to racial prejudice in order to influence the jury in making its recommendation of the death sentence. circumstance is clearly supported by the record, we find it unnecessary to decide whether the jury erred in finding two additional aggravating circumstances. Even if the jury erred the error is harmless. State v. Narcisse, No. 81-KA- 2285 (La., Jan. 10, 1983); State v. Moore, 414 So. 2d 340 (La. 1982); State v. Mattheson, 407 So. 2d 1150 (La. 1981), rehearing denied; State v. Monroe, 397 So. 2d 1258 (La. 1981); State v. Williams, 383 So. 2d 369 (La. 1980), cert. denied, 449 U.S. 1103; State v. Martin, 376 So. 2d 300 (La. 3 1979), cert. denied, 449 U.S. 998. (c) Proportionality to the penalty imposed in similar cases Supreme Court Rule 28, §4 provides that the district attorney shall file with this court a list of each first degree murder case in the district in which sentence was imposed after January 1, 1976. The list shall include the docket number, caption, crime convicted, sentence ac- tually imposed and a synopsis of the facts in the record concerning the crime and the defendant. In the instant case, the list reveals that there have been twenty-one first degree murder prosecutions in the Twenty-Fourth Judicial District Court in and for the Parish of Jefferson since January 1, 1976. Of these prose- cutions, fifteen, including the instant case, resulted in 3. Zant v. Stephens, U.S. , 102 S.Ct. 1856 (1982), does not represent a Contrary holding. In Zant, the United States Supreme Court certified this issue to the Georgia Supreme Court for an explanation of the state-law premises supporting the court's conclusion that a death sentence was not impaired by the invalidity of one of the statutory aggravating circumstances found by the jury. 4 verdicts of first degree murder. Out of these fifteen, the death penalty was recommended by the jury in five cases, including the present case.” In all five of these cases the defendants were the actual killers. In this case and two others, the killings occurred during armed robberies, a statutory aggravating circumstance.° In the fourth and fifth death cases, there was either a risk of death or great bodily harm to more than one person or multiple aggravating circumstances. ’ In the ten remaining first degree murder verdicts in Jefferson Parish, where a death sentence was 4. State v. Shilling, No. 82-KA-1820 (docketed but not yet set for argument); State v. Taylor, No. 81-KA-2298 (La., Nov. 18, 1982); State v. Sawyer, No. 81-KA-1566 (La., » 1982); State v. Sharp, No. 81-KA-2385 (La., July 2, 19682); State v. Lane, 414 So. 2d 1223 (La. 1982) (a companion to Sawyer); State v. Tuckson, 414 So. 2d 360 (La. 1982); State v. Love, 410 So. 2d 1045 (La. 1982); State v. Goza, 408 So. 2d 1349 (La. 1982); State v. Wilson and Moses, 404 So. 2d 968 (La. 1981); State v. Smith, 400 So. 2d 587 (La. 1981); State v. Berry, 391 So. 2d 406 (La. 1980); State v. Riggins, 388 So. 2d 1164 (La. 1980); State v. Manieri, 378 So. 2d 931 (La. 1979); State v. Andrews, 369 So. 2d 1049 (La. 1979). 5. The other four cases were Sawyer, supra; Smith, supra; Berry, supra} and Taylor, supra. Taylor and Smith were lack on white crimes. Berry and Sawyer were white on white crimes. 6. The two cases involving armed robberies, in addition to the instant case, were Berry and Taylor, supra. In Berry, a police officer was killed during the course of an armed robbery. In Taylor, the defendant committed armed robbery in a shopping center parking lot at night. The victim had placed a car there with a For Sale sign. Defendant tele- phoned and expressed interest in the car. The victim was stabbed and shoved into the trunk of the car he had driven to the shopping mall. 7. The two other death cases were Sawyer and Smith, supra. In Sawyer, there were multiple aggravating circumstances. In, Smith, there was a risk of death or great bodily harm to more than one person. The conviction was affirmed in Smith but the case was remanded to the trial judge for develop- ment of additional facts relating to the existence of the aggravating circumstance found by the jury. not imposed, there was only one aggravating circumstance or a complete absence of such circumstances, or there were present mitigating circumstances which justified the jury's recommendation of life imprisonment. ® In an effort to counteract the aggravating circumstances argued by the state in the present case, defencant argued that there were three circumstances mitigating against a sentence of death: (1) his youth (twenty years at the time of the offense). La. Code Crim. P. art. 905.5(f£); (2) that he was a principal whose participation was relatively minor. La. Code Crim. P. art. 905.5(9)3 (3) that at the time of the crime, he was unable to appreciate the Criminality of his conduct or to 8. State v. Lane, supra (Defendant was not the actual kil- ler.); State v. Sharp, supra (Intoxicated Vietnam veteran killed wife's relatives when they tried to force him to leave their house in which his wife was staying since she decided to seek divorce.); State v. Goza, supra (Defendant was not the actual killer. The conviction and sentence were reversed and the case remanded for further proceed- ings.); State v. Andrews, supra (Defendant and victim were teenagers who had been arguing over football game.); State v. Manieri, supra (Defendants, two brothers ages 17 and 21, went to an acquaintance's house looking for marijuana; they killed eleven-year-old son of woman who asked them to leave her house.); State v. Love, supra (No aggravating circum- stances established. The conviction and sentence were reversed and the case remanded for retrial.); State v. Tuckson, supra (On review, this court set aside the convic- tion and remanded the case for entry of guilty of second degree murder. Entry of unoccupied vehicle was not aggra- vated burglary.); State v. Wilson and Moses, supra (Defen- dants, both black, got into confrontation with a group of eighteen white males who were drinking beer in shopping center parking lot; defendants fired several shots, fatally wounding one person. The convictions and sentences were reversed and the case was remanded for a new trial.); State v. Riggins, supra (Defendant shot an elderly man who was in the process of closing up his business.); State v. Shil- ling. supra (Defendant and co-defendant stabbed and beat victim, took $30 from his pants pocket, and later slit his throat and drowned him.). conform his conduct to the requirements of the law because of mental disease or defect. La. Code Crim. P. art. 905.5(e). Defendant called two psychiatrists, Dr. DeVillier and Dr. Arneson, as witnesses on the issue of mental defect. Both testified that defendant had an IQ between 50 and 60, representing mild to moderate mental retardation, but that he could distinguish right from wrong. Dr. Arneson found that defendant had a long history of antisocial behavior beginning around age eight when he struck another child with a railroad iron knocking his teeth out, as well as a history of drug abuse, and he described defendant as the type of person who would do anything for self-motivation or self-gratification regardless of the effect on others. Dr. Arneson further testified that defendant showed no remorse or display of sympathy in the present case and he consi- dered defendant's chances of getting into this same kind of difficulty almost inevitable. Defendant also called as witnesses his minister, Reverend John L. Davis and two Catholic priests, Fathers George Lundy and Edward Arroyo, who had counseled him recently; but their testimony added little. No evidence was offered relative to the fact that defendant was a principal whose participation was rela- tively minor. To the contrary, the evidence is clear that defendant was the only person who committed the murder while engaged in the perpetration of the armed robbery. Defendant's youth, age twenty at the time of the offense, was a mitigating circumstance before the jury for its con- sideration. Proportionality is a safeguard against arbi- trary and capricious action by a jury. This court recently affirmed a sentence of death imposed for another armed robbery conviction in Jefferson Parish. State v. Taylor, Supra. Although the present case does not involve the elements of heinousness present in Taylor, defendant did aim the murder weapon at several eyewitnesses and had a prior criminal record.” We do not consider that defendant has demonstrated mitigating factors making the penalty imposed in this case arbitrary or capricious or dispropor- tionate to that imposed in similar cases. According to the Uniform Capital Sentence Report, defendant was a twenty year old black male at the time of the offense. He left school in his early teens and has worked only intermittently as a dishwasher and picking wood for his father. He has been evaluated as mildly to moderately retarded and has a long history of drug abuse. He has one child, illegitimate, to whom he has contributed some support. Defendant was arrested some two weeks after Earline B. Kidner's murder for carrying an illegal sawed- off shotgun. Three other subjects were arrested at the same time. One, Lester Thomas, gave a signed statement that defendant fled the scene of the shooting. Another, Michael Vincent, stated defendant spoke with him imme- diately after the shooting and admitted committing the 9. As stated earlier our decision makes it unnecessary for us to decide whether the jury erroneously concluded that these factors constituted statutory aggravating circum- stances. They were in any event appropriate factors for the jury to consider. murder. Defendant has a juvenile record and an adult rec- ord consisting of two prior misdemeanor convictions and one felony conviction. After considering both the crime and the defendant, we are unable to conclude that the sentence of death in the instant case is disproportionate to the pen- alty imposed in similar cases in Jefferson Parish. In sum, based on the above criteria, we do not consider that defendant's sentence of death constitutes cruel, excessive or unusual punishment. DECREE For the reasons assigned, defendant's sen- tence is affirmed. (Editorial note to West Publishing Company: This appendix is not for publication.) APPENDIX ASSIGNMENT OF ERROR NO. 3 (ARGUMENT NO, I) Defendant contends the trial judge erred in denying his request for individual voir dire and sequestra- tion of jurors. He argues that he was prejudiced as a result thereof. A trial court has the discretion to permit individual voir dire if a defendant can demonstrate that special circumstances are present. State v. Lindsey, 404 So. 2d 466 (La. 1981); State v. Monroe, 397 So. 2d 1258 (La. 1981); State v. Robinson, 302 So. 2d 270 (La. 1974). No such showing was made here. Hence, there is no merit to this contention. During voir dire, the trial judge called for a ten minute coffee break and instructed a deputy of the court to “take those people who have been selected as jurors." The judge reminded those jurors not to leave the group and “not to discuss this case with anybody until the case is over, not even your fellow jurors.*® “The rest of [the] people" were also instructed to take a short, ten- minute break. After the recess was over, defendant made the following objection: [A)l1l those who are in the audi- ence and heard all the questions are going out not sequestered, when they come back and they're selected as jurors, they could influence the jurors who have been selected. The objection was overruled. After the jury panel was selected, but prior to the selection of two alternates, the trial judge reminded the panel “not to discuss this case with each other or with anyone else until the case is com- pletely finished and a verdict has been rendered.* La. Code Crim. P. art. 791 provides in perti- nent part: A. A jury is sequestered by being kept together in the charge of an officer of the court so as to be secluded from outside com- munication, except as permitted by R.S. 18:1307.2. B. In capital cases, after each juror is sworn he shall be sequestered. This court has held that the purpose of art. 791 is to provide for keeping the jury together after selected and Sworn, as well as secluded from outside communication. State v. Lindsey, supra; State v. McAllister, 253 La. 382, 218 So. 2d 305 (1969). We have held that it was not error in a capital case to have permitted already-sworn jurors to commingle with potential jurors during a fifteen-minute recess where the circumstances reasonably overcame any presumption of prejudice and affirmatively showed that no prejudice to the accused could have resulted. State v. Liner, 397 So. 2d 506 (La. 1981). In the present case, even if the jurors not yet selected did commingle during the ten-minute recess with those already sworn, a fact not clear from the record, we consider that under the circumstances, in particular the judge's warning against discussing the case, defendant was not prejudiced. Assignment of Error No. 3 is without merit. ASSIGNMENT OF ERROR NO. 4 (ARGUMENT NO. IV) Defendant contends the trial judge erred by not allowing him reasonable time to take writs after denial of several pretrial motions. Defendant argues that he should have been granted his request for a ten-day continu- ance. When defendant's pretrial motions were denied, after a hearing, and defendant requested ten days to file writs, the trial judge noted that it was already January 8 and trial was set for January 25. The judge refused to allow a ten-day continuance and ruled that if defendant wished to file writs he should do so by four o'clock that evening. Defendant objected arguing that he needed time to determine whether he should take writs. Defendant's appointed counsel assured the judge he was not attempting a delay tactic. Rule 10, §5(b) of the Louisiana Supreme Court Rules provides, in pertinent part: When an application is sought to review the actions of a trial judge, he shall fix a reasonable time within which the application shall be filed in this court, and he may in his discretion stay further proceedings. Upon proper showing, the judge or this court may by order extend the time for such filing. (Emphasis added.) Under Rule 10, §5(b), once the trial judge refused to stay the proceedings, defendant's remedy was to ——— eee eee ee eee EE Ee ee Ee EE ee eee ee Se eee eee eee awww ewer i. They were: A motion for “production of impeaching infor- mation and evidence*®; a motion to allow both defense coun- sel to present opening and closing statements; a motion to allow defendant to act as co-counsel; a motion to allow retained counsel to enroll as co-counsel with appointed counsel; a motion for individual voir dire and sequestra- tion of jurors; and a motion to have jurors complete a questionaire before voir dire. apply to this court for an extension of the 4:00 p.m., January 8 deadline which the trial judge had imposed. Defendant did not do so. Now, defendant raises this issue on appeal. Our review of the record shows that the trial judge gave reasons for his denial of each motion. We find no error in his rulings. Assignment of Error No. 4 is without merit. ASSIGNMENT OF ERROR NO. 7 (ARGUMENT NO. II) Defendant contends the trial judge erred in denying his motion for a mistrial based on the court's denial of his challenge for cause of a juror already sworn who later came forward and said he had relatives in the Sheriff's Department. Defendant argues the juror's presence on the jury was prejudicial. When he was initially examined, the juror, Mr. Puglise, stated that no member of his family was in law enforcement. Neither the state nor defendant exercised a challenge, peremptory or for cause, of Mr. Puglise and he was sworn. Mr. Puglise later came forward, during voir dire, and informed the judge: There's something I overlooked. Two cousins that work here in the courthouse . . . for the Sheriff's Department. ... I didn't think about them. When questioned by the judge, Mr. Puglise stated that his relationship to these Sheriff's Department employees made no difference to him and that he would not take a police- man's word over that of any other witness. The judge found that Mr. Puglise had “honestly forgot*® about his relations and saw no reason to excuse him for cause. Defendant objected and, having already exhausted his peremptory chal- lenges, asserted a challenge for cause. The trial judge questioned Mr. Puglise further. The juror stated that he had not talked to his cousins in six months and had never discussed any court matter with them. Given these facts and the fact that Mr. Puglise had already said he could be a fair and impartial juror, the judge denied defendant's challenge for cause and also his subsequent motion for a mistrial. Under La. Code Crim. P. art. 797(3), a chal- lenge for cause may be made when: The relationship, whether by blood, marriage, employment, friendship, or enmity between the juror and the defendant, the per- son injured by the offense, the district attorney, or defense counsel, is such that it is rea- sonable to conclude that it would influence the juror in arriving at ° a verdict. The time for challenges is governed by La. Code Crim. P. art. 795 which provides that a juror cannot be challenged for cause after having been accepted unless the ground for the challenge was not known prior to acceptance. We have held that a trial judge is vested with broad discretion in ruling on a challenge for cause, and that ruling will not be disturbed on appeal absent a showing that he abused that Giscretion. State v. Allen, 380 So. 2d 28 (La. 1980). In the instant case, the ground for a chal- lenge for cause, that is, the juror's relationship by blood to two Sheriff's Department employees, was not known by defendant until after the juror was sworn. Therefore, under art. 795, defendant could still exercise a challenge for cause. However, 797(3) provides that a juror's blood relationship to law enforcement employees is a ground for a challenge for cause where “it is reasonable to conclude that it would influence the juror in arriving at a ver- dict." In State v. Allen, supra, we held that one could not reasonably conclude such influence where jurors ini- tially stated they would give more weight to the testimony of law enforcement officers, but later upon further in- guiry “demonstrated their willingness and ability to decide the case impartially, according to the law and evi- dence." Here, as the trial judge noted, the juror stated he could be a fair and impartial juror. Unlike Allen, Supra, he also stated he would not give greater weight to the testimony of policemen. The juror's failure to mention his relations in law enforcement when first questioned on voir dire is not surprising in view of his testimony that he had not talked to them in six months and had never dis- cussed any court business with them. Under the circum- stances, it would not have been reasonable to infer that Mr. Puglise's relationship by blood with two law enforce- ment employees would cause bias or prejudice to defendant. Hence, the trial judge did not abuse his discretion in denying defendant's challenge for cause. Nor did the trial judge err in denying defen- Gant's subsequent motion for a mistrial. The grounds for a mistrial are set forth in La. Code Crim. P. art. 775 which provides in pertinent part: A mistrial may be ordered, and in a jury case the jury dis- missed, when: (6) False statements of a juror on voir dire prevent a fair trial. Upon motion of a defendant, a mistrial shall be ordered, and in a jury case the jury dismissed, when prejudicial conduct in or outside the courtroom makes it impossible for the defendant to obtain a fair trial, ... The trial judge's denial of defendant's challenge for cause of Mr. Puglise did not make it impossible for defendant to obtain a fair trial; therefore, a mistrial was not warranted. Assignment of Error No. 7 is without merit. ASSIGNMENT OF ERROR NO. 13 (ARGUMENT NO. III) Defendant contends the trial judge erred in allowing photocopies of a document? already introduced in evidence to be made for use by the jurors. Just before the end of its case, the state moved to introduce in evidence a certified copy of the ccroner's report. While the jury was examining this and other exhibits, the state moved that “the report ... be xeroxed and an individual copy provided to each individual on the jury [to] save time, instead of reading... [or] instead of having one review it for twenty minutes and passing it down for another twenty minutes. ...° The trial judge granted the state's motion, commenting: 3. In brief, defendant contends that two other documents were also photocopied: a certified copy of defendant's 1977 conviction for simple burglary (8-10) and a certified copy of his 1977 conviction for battery (5-11). However, the record, although not explicit, indicates that only one document, “the report,* was photocopied. At oral argument it was made clear that this was the coroner's report (5-8). 4. Included with the coroner's report were the victim's death certificate and the autopsy report. I do not see in any way how it can prejudice the rights of the defen- dant, and, for the interest of saving time, I'm going to order that we photostat that which has been introduced into evidence. I'm going to request that counsel for the defendant both go and see that the photostats are exactly the same as that which was intro- duced, and I'm going to order that fourteen copies be made and give one copy to each juror to look at, because the first juror has taken twenty minutes before we broke. Multiply that by fourteen times and you'll have almost five hours--or at least four hours that the jury will be looking at the thing before they get finished. Defendant objected. He argued that the judge was in essence emphasizing this particular piece of evi- dence to the jury and making a comment on the evidence in violation of La. Code Crim. P. art. 772. He further argued that since each copy was not certified, the photocopies were "no evidence at all" under La. R.S. 15:457. The judge reiterated that the jury would be given a copy of the coro- ner's report "in order to save time, as a convenience to the jury as well as a convenience to the court and every- body else." He instructed the jury that the photocopies were allowed for the sake of time only and were “in no way intended to give any special emphasis on this particular document.* La. R.S. 15:457 provides that “[a]) copy of a document, certified to by the officer who is the legal custodian of the same is equivalent to the original in authenticity. . .." In the instant case, the copy of the coroner's report submitted in evidence was certified by two assistant coroners and it was, therefore, equivalent to the Original in authenticity. La. Code Crim. P. art. 17 provides that a court “has the duty to require that criminal proceedings shall be conducted with dignity and in an orderly and expe- ditious manner and to so control the proceedings that jus- tice is done.” Under La. Code Crim. P. art. 3, “Where no procedure is specifically prescribed by this Code or by statute, the court may proceed in a manner consistent with the spirit of the provisions of this Code and other appli- cable statutory and constitutional provisions.* One restriction which the Code places on the court is La. Code Crim. P. art. 772 which provides: The judge in the presence of the jury shall not comment upon the facts of the case, either by commenting upon or recapitulating the evidence, repeating the testi- mony of any witness, or giving an opinion as to what has been proved, not proved, or refuted. In the instant case, the trial judge granted the state's motion to have the coroner's report photocopied for each juror in order to expedite the proceedings. This was consistent with the mandate of art. 3 to expedite the proceedings. No procedure is specifically prescribed by Code or statute for such a situation. We consider that the judge proceeded in a manner consistent with the spirit of the Code as mandated by arts. 17 and 772. The judge made it clear that this procedure was not to be taken as a com- ment on the evidence. The photocopies were properly sub- mitted for the jury's use. Assignment of Error No. 13 is without merit. Bi ASSIGNMENT OF ERROR NO. 14 (ARGUMENTS NOS. VI, VIII, X AND XI) By this assignment of error, defendant con- tends the trial judge erred in denying his motion for a mistrial based on his argument that the judge’s reply to the jury's request for clarification on the role of miti- gating circumstances was not responsive to the question asked. In brief, defendant further argues the trial judge erred in his initial jury instructions on aggravating and mitigating circumstances and burden of proof. The record shows that the trial judge instructed the jury to consider both aggravating and miti- gating circumstances, and he enumerated for them those circumstances listed in La. Code Crim. P. arts. 905.4 and 905.5 and told them that they would be furnished a list of both for use during deliberation. He reminded the jury: - « « Before you decide that a sentence of death should be im- posed, you must unanimously find beyond a reasonable doubt that at least one statutory aggravating circumstance existed. ... You are not to be influenced by pas- sion, prejudice, or any other arbitrary factor. Even if you unanimously find one or more sta- tutory aggravating circumstances, you are not required to impose the death penalty on Tyronne Lindsey. - »« You can still sentence [him] to life imprisonment. .. Even if you find the existence of the aggravating circumstance, you must also consider any mitigating circumstances before you decide that a sentence of death should be imposed. ... [I])n addition to those specifically provided miti- gating circumstances, you may also consider any other relevant miti- gating circumstance. .. which you feel should mitigate the severity of the penalty to be imposed. In considering possible mitigating circumstances, you are not limited to those which may have existed at or prior to the offense; you may also consider facts and circumstances that have occurred since the time of the offense. A mitigating circum- stance does not have to be proved beyond a reasonable doubt to exist. The fact that you are given a list of aggravating and mitigating circumstances should not cause you to infer that the Court believes that any of the circumstances do or do not exist. « « « Later during its deliberations, the jury asked the judge “[I])f£ there is one or more mitigating circumstances, can the death penalty still be imposed?* The trial judge called both counsel to the bench. After neither counsel objected to his proposed instructions, he read to the jury La. Code Crim. P. art. 905.3 verbatim, interjecting only a notation that the statutory reference to mitigating circumstances was "in plural." The judge asked whether this answered the jury's guestion. The jury foreman replied that it “sure* did. After the jury returned to its deliberations, defendant objected to the trial judge's clarifying instruction. He then argued that the instruction was not responsive and that the proper instruction was: "“[If] you find any mitigating circumstances, you have to come up with a verdict of life imprisonment and not death." The judge noted defendant's proposed instruction was “not the law" and overruled the objection. He pointed out that he had called defendant to the bench prior to giving the instruction to give him an opportunity to object and defendant had not done so. La. Code Crim. P. art. 802 mandates that "[t)he court shall charge the jury: (1) as to the law applicable to the case.* Jury findings for recommending a sentence of death are governed by art. 905.3 which provides: A sentence of death shall not be imposed unless the jury finds beyond a reasonable doubt that at least one statutory aggravating circumstance exists and, after consideration of any mitigating circumstances, recommends that the sentence of death be imposed. The jury shall be furnished with a copy of the statutory aggravating and mitigating circumstances, Articles 905.4 and 905.5 provide lists of the aggravating and mitigating circumstances which “shall be considered.* In the instant case, the trial judge complied with the mandate of art. 802 that he instruct the jury “as to the law applicable to the case," here a capital case, when he instructed the jury on their duty, that is, the burden of proof, under La. Code Crim. P. art. 905.3 and enumerated the aggravating and mitigating circumstances which arts. 905.4 and 905.5 state "shall" be considered before a sentence of death is recommended. The trial judge's supplementary instruction was a reiteration of that law. Article 905.3, which the judge read to the jury, Clearly sets forth the prerequisites for recommending a sentence of death, that is, that after finding one aggra- vating circumstance existed beyond a reasonable doubt, the jury has the option to recommend a sentence of death irre- spective of whether or not they find mitigating circum- stances were present provided they did fully consider the possibility of mitigating circumstances. Neither the state nor defendant objected to the trial judge's proposed read- ing of art. 905.3 in response to the jury’s request for Clarification. After the judge read art. 905.3, the jury foreman stated without eguivocation that their question had been answered, Hence, the judge properly denied defen- Gant's motion for a mistrial. Assignment of Error No. 14 is without merit. OTHER ASSIGNMENTS OF ERROR Assignments of error neither briefed nor argued are generally considered abandoned. State v. Lindsey, 404 So. 2d 466 (La. 1981). However, in cases where the death penalty is imposed this court reviews assignments of error not briefed as a matter of policy. State v. Lindsey, supra; State v. Monroe, 397 So. 2d 1258 (La. 1981). In Assignment of Error No. 1, defendant con- tends the trial judge erred in denying his motion for pro- duction of “impeaching information and evidence.” ietine dant argued his motion should be granted to enable him to adequately prepare. La. Code Crim. P. arts. 716-729.6 govern discovery. The state complied with all the dis- covery requirements at the time of defendant's original trial. In the present case, the state made it clear that it would rely entirely on the record from defendant's Original trial, of which defendant admitted he had a copy, and the state restricted itself to that record. The judge observed that it was impossible for the state to tell defendant what it intended to impeach until defendant's witnesses had been sworn and had testified. Assignment of Error No. 1 is without merit. In Assignment of Error No. 2, defendant con- tends the trial judge erred in denying his motion to allow each of his counsel, appointed and retained, to make opening and closing arguments. Defendant could cite no authority for his motion. The trial judge ruled that, while defen- Gant had a right to co-counsel, he did not have a right to have both counsel make opening and closing arguments and that the time allotted for such arguments would not be prorated bekneen the counsel absent some showing that they had different areas of expertise. This court has held that matters of practice and procedure are left to a trial judge's sound discretion, unless regulated by statute or established by jurisprudence” and that courts have suffi- cient discretion to enable them to reasonably expedite the trial of cases.° A conviction will not be set aside for error unless the defendant's rights were plainly violated. La. Code Crim. P. art. 921. They were not violated in this case. Hence, Assignment of Error No. 2 is without edbihe In Assignment of Error No. 5, defendant con- tends the trial judge erroneously allowed the state to present part of its opening statement on voir dire. The state began its voir dire with a short synopsis of the facts and procedural history of this case. Defendant ob- jected. The state argued that its statement was directed at discovering those jurors who had preformulated opinions about the case. Defendant's objection was overruled. The state continued its voir dire, concluding with a short explanation that the jury's duty was not to determine de- fendant's guilt or innocence but to fairly and impartially determine his penalty. The purpose of voir dire is to 5. State v. Horn, 167 La. 190, 118 So. 884 (1929). 6. State v. Major, 132 La. 201, 61 So. 202 (1913). - 4) ——-_- hu + “er his ttt a i determine qualifications of prospective jurors by testing their competency and impartiality. It is designed to dis- cover bases for challenges for cause, one of which is that the juror is not impartial, and to secure information for an intelligent exercise of peremptory chalienges. The scope of voir dire examination is within the sound discre- tion of the trial judge and his rulings will not be dis- turbed on appeal in the absence of a clear abuse of discre- tion. State v. Perry, 420 So. 2d 139 (La. 1982); State v. Murray, 375 So. 2d 80 (La. 1979); State v. Jackson, 358 So. 2d 1263 (La. 1978). The trial judge did not abuse his discretion when he allowed the state to set the factual framework of the case and then question the jurors on their prior knowledge thereof after clarifying that defendant, \s guilt was not at issue. Hence, Assignment of Error No. 5 is without merit. In Assignment of Error No. 6, defendant con- tends it was error for the trial court to disallow his voir dire of a potential juror on mitigating circumstances. Defendant asked the juror if he would come back with a sentence of life imprisonment if he were convinced that there was a mitigating circumstance. The state objected. The trial court sustained the objection on the ground that the question was an incorrect statement of the law under La. Code Crim. P. art. 905.3. The trial judge correctly sustained the objection and required defendant to restate the law correctly if he wished to state the law at all. State v. James, 339 So. 2d 741 (La. 1976). Hence, Assign- ment of Error No. 6 lacks merit. In Assignment of Error No. 8, defendant con- tends the trial judge erred by not tendering each juror for challenge individually. Jurors were voir dired and ten- dered for challenge in panels of ten. La. Code Crim. P. art. 786 provides for “the right to examine prospective jurors,” and La. Code Crim. P. art. 788 provides that after such examination “a prospective juror” shall be tendered first to the state and then to defendant. La. Const. art. 1, §17 guarantees that "[t]he accused shall have a right to full voir dire examination of prospective jurors and to challenge jurors peremptorily.* We do not consider that the collective tendering of a panel of ten prospective jurors for challenge deprives defendant of a meaningful exercise of his constitutional right to full voir dire. In Assignment of Error No. 9, defendant con- tends the trial judge erred in admitting in evidence the victim's death certificate and the coroner's report, over his objection. The record shows that both documents bore the certificates of two assistant coroners. Under La. R.S. 15:457, "[A] copy of a document, certified to by the offi- cer who is the legal custodian of the same is equivalent to the original in authenticity." La. Code Crim. P. art. 105 expressly provides that a coroner's report is admissible as competent evidence of death and cause thereof, but not of any other fact. The state had from the beginning stated its intent to rely upon what was in the record of the ori- ginal trial. These documents had been accepted in evidence at that time. The trial judge correctly concluded that the documents were admissible in evidence for the present sen- tencing hearing. Hence, Assignment of Error No. 9 is with- out merit. In Assignment of Error No. 10, defendant contends the trial judge erred in playing his taped confes- sion over his objection. Defendant argued that the content of the tape was not relevant to the sentencing hearing. The state argued that it was relevant evidence because it established the fact of an armed robbery, one of the aggra- vating circumstances under La. Code Crim. P. art. 905.4. The trial judge overruled defendant's objection and noted that the confession was admissible in its entirety since it was part of the original record on which the state was entitled to rely. For the reasons cited by the state and the trial judge, we consider that Assignment of Error No. 10 is without merit. In Assignment of Error No. ll, defendant 4 contends the trial judge erred in admitting in evidence certified copies of two prior convictions. Defendant ob- jected to the admission of S-10, a certified copy of his 1977 conviction for simple burglary, on the grounds that it was an incomplete record (governmental pardon not attached) and that it was too old to be relevant. He argued that S-ll, a certified copy of his 1977 conviction for battery was also too old to be relevant. The state contended that both documents were relevant to its attempts to prove that defendant had a “significant prior history of criminal activity,” an aggravating circumstance under La. Code Crim. P. art. 905.4. La. Code Crim. P. art. 905.2 provides in pertinent part that evidence of aggravating circumstances "shall be relevant” and that “[t]Jhe jury may consider any evidence offered at the trial on the issue of guilt." We have held that a pardon does not prevent the use of a conviction for purposes of impeachment. State v. Clark, 402 So. 2d 684 (La. 1981). The defendant may introduce evidence of his pardon and the jury may weigh it as a valid consideration in assessing his credibility. Similarly, we consider that in the instant case evidence of a pardon did not bar the court's admitting a prior conviction in evi- dence for purposes of showing an aggravating circumstance. Any pardon, as well as the remoteness of prior convictions, should have been addressed by defendant as a mitigating circumstance. Hence, Assignment of Error No. 11 is without merit. In Assignment of Error No. 12, defendant contends the court erred in denying his motion for a di- rected verdict based upon the state's failure to present, evidence proving beyond a reasonable doubt the existence of any aggravating circumstance or “any type of crime com- mitted." We have held that a trial judge may only direct a verdict in bench trials, not in jury trials. State v. Garrison, 400 So. 2d 874 (La. 1981). Furthermore, La. Code Crim. P. art. 905.8 states that “[t]he court shall sentence the defendant in accordance with the recommendation of the jury.” (Emphasis added.) State v. Prejean, 379 So. 2d 240, 246 (La. 1979). The trial court therefore had no authority or discretion to grant defendant's motion and correctly denied it. Hence, Assignment of Error No. 12 is without merit. In Assignments of Error Nos. 15 and 16, de- fendant contends the trial judge erred in denying his mo- tion for a new trial and in arrest of judgment based upon "any patent errors made throughout the course” of the ~ sentencing hearing, specifically that alleged in Assignment of Error No. ll. As we have noted on this appeal, none of defendant's assignments of error has merit. Likewise, our review of the record discloses no patent error. Hence, defendant*s motions for a new trial and in arrest of judg- ment were properly denied. Assignments of Error Nos. 15 and 16 are without merit. SUPREME CCURT OF LOUISIANA No. 82-KA-1323 STATE OF LOUISIANA ‘\ Versus TYRONNE LINDSEY DIXON, Chief Justice (dissenting) I respectfully dissent. A constitutional death penalty is not available for twenty year old black retarded unemployable drug abusers like this defendant. SUPREME CUURT UF LUUISIARNA FEO € 4 4yor2 NO. 82-KA-1323 STATE OF LOUISIANA versus TYRONNE LINDSEY ENNIS, J., concurring. I respectfully concur. The majority opinion states that any error committed by the jury in finding more than one aggravating circumstance is harmless. The statement is misleading because it indicates that this court has reviewed the record and found no reasonable possibility that such an error contributed to the verdict and was harmless beyond a reasonable doubt. See State v. Gibson, 391 So.2d 421 (1980). There has been no review for this purpose, however, because this court has taken the position that le judicial function is completed upon the finding of sufficient evidence to support one aggravating circumstance in a capital case. See, State v. Monroe, 397 So.2d 1258 (La. 1981); Cf. State v. Moore, 414 So.2d 340 (La. 1982); State v. Williams, 383 So.2d 369 (La. 1980); cert. denied, 449 U.S. 1103; State v. Martin, 376 So.2d 300 (La. 1979), cert. denied, 449 U.S. 998. See generally, Note, Captial Sentencing Review Under Supreme Court Rule 28, 42 La.L.Rev. 1100, 1110-112 (1982). ORIGINAL ORIGINAL ~ No. 92 KA 1323 STATE OF LOUISIANA DELIVERED BY HAND SUPREISE COURT OF LOUISIANA Clerk. _ cn Cs STATE OF LOUISIANA VERSUS TYRONNE LINDSEY In Re__2¥RONNE LINDSEY APPLYING FOR REHEARING Applying for Certiorari, or writ of review, to the court of Appeal Parish of State of Louisiana. Joseph L. Montgomery, Esq Martha E. Sassone, Esq. - - P. O. Box 9 Gretna, LA 70053 % /e3 Attorneys for Applicant. REH DENIED William J. Guste, Jr., Attorney General, Barbara Rutledge, Asst. Attorney General, — John M. Mamoulides, District Attorney, and Attorneys for Respondents. ’ William C. Credo, Asst. District Attorneys OF ae CE wel ae paw, ) --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_1456%3A1. Public record. Not legal advice.